Murphy v. Turner, 565-69.
| Decision Date | 08 May 1970 |
| Docket Number | No. 565-69.,565-69. |
| Citation | 426 F.2d 422 |
| Parties | Darwin MURPHY, Petitioner-Appellee, v. John W. TURNER, Warden, Utah State Prison, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Lauren N. Beasley, Chief Asst. Atty. Gen., Salt Lake City, Utah (Vernon B. Romney, Atty. Gen., Salt Lake City, Utah, on the brief), for appellant.
H. R. Waldo, Jr., Salt Lake City, Utah, for appellee.
Before PICKETT, Senior Circuit Judge, and LEWIS and HICKEY, Circuit Judges.
This is an appeal brought by the Warden of the Utah State Prison seeking review of the lower court's action in granting appellee Murphy's application for writ of habeas corpus.
The basic issue presented by this appeal is whether a person on remandatory release is entitled to the traditional rules of due process at the post-revocation proceeding required by state statute.
Murphy was serving a term for forgery in the Utah State Prison. He was placed on remandatory release by the Utah State Board of Pardons and while on parole he was arrested and charged with the crime of rape.
Accordingly, Murphy's parole was revoked and he was given a hearing before the Board. The ground cited by the Board for parole revocation was the rape charge pending against Murphy. The Board affirmed the revocation of parole but continued the hearing with Murphy's consent for final determination until disposition of the pending rape charge had been effected.
Murphy demanded a speedy trial on the rape charge pursuant to the Utah implementing statute and the time provided for therein expired before Murphy was tried. Accordingly, the rape charge was dismissed.
The Board then reconvened in the presence of Murphy and his appointed counsel for the purpose of hearing the evidence against Murphy upon which the charge of rape had been based. During the proceedings a recorded statement was introduced which was made by Murphy to the Salt Lake Police in which he admitted having intercourse with the victim of the rape but denied that she was within the protected age range of statutory rape or that he had forcibly raped her.
Murphy's counsel moved to dismiss the proceeding on the ground that the rape charge had been dismissed and therefore was no longer pending as alleged. The Board overruled the motion and proceeded to hear unsworn witnesses, a recorded statement made by the rape victim and police records in the nature of reports kept at the police station. Counsel for Murphy made timely objection to the foregoing procedure, but was overruled. The Board approved the revocation.
Murphy then filed an application for writ of habeas corpus in the lower court. An order to show cause was issued and an evidentiary hearing held.
At the conclusion of the hearing the court made findings of fact which essentially conform to those above set out.
The lower court also made the following pertinent conclusions of law:
Murphy was ordered released subject to the conditions of his previous parole.
In relation to the conclusions of law of the lower court, we, as an appellate court, may exercise our independent judgment where there is no dispute in the evidence....
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